Citation Nr: 21003187 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-38 093 DATE: January 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia or posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The evidence is against a finding that the Veteran’s acquired psychiatric disorder was caused by, incurred in, or otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include schizophrenia or PTSD, have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied a petition to reopen a claim of entitlement to service connection for schizophrenia, which was denied by the Board in November 2002. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2019, as well as before a different VLJ in July 2002 prior to the Board’s original denial. Transcripts of both hearings are of record. While the issue was reopened by the Board in June 2019, and recharacterized as entitlement to service connection for an acquired psychiatric disorder, it was remanded for additional development, included obtaining prison records based on the Veteran’s reports of post-service incarceration. Review of the record since the Board’s remand reflects that the RO attempted to obtain such records in a November 2019 correspondence where the Veteran was asked to identify any outstanding medical records. No response from the Veteran was received, however, and there is no suggestion that the Veteran did not receive VA’s correspondence. In addition, and also pursuant to its previous remand, an additional VA examination was afforded in April 2020 to determine the nature and etiology of any acquired psychiatric disorder. As such, the Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. VA has also established certain rules and presumptions for chronic diseases, such as psychoses. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As an initial matter, the Board finds that the Veteran has a current disability. For example, schizophrenia and alcohol dependence (in partial remission) were diagnosed during the appeal at a VA examination in December 2012. More recently he was diagnosed only with schizophrenia at his April 2020 VA examination. PTSD has not been diagnosed. Of note, the April 2020 VA examiner attempted to elicit information from the Veteran regarding in-service stressors; however, the Veteran disclosed only nonservice-related trauma. A such, PTSD could not be established. See 38 C.F.R. § 3.304(f). Thus, the remaining question is whether the Veteran’s schizophrenia is related to service. Military personnel records note that the Veteran struck a superior officer just prior to his discharge from service, and various records indicate a post-service criminal history. Of particular importance, the Board notes that the Veteran has stated on numerous occasions that he began hearing voices in service that instructed him to shoot his then spouse. The record does indeed reflect a medical treatment record dated September 1966, less than one year following the Veteran’s release from service, related to a gunshot wound to his spouse’s left heel. While the medical report indicates an accidental shooting, the Veteran’s ex-spouse would later state that the shooting was intentional, and that she was instructed by the Veteran at the time to fabricate her version of the incident. See March 2, 1999 Third Party Correspondence. Additionally, the Veteran stated in an April 2003 correspondence that he believed his psychiatric disorder began after a head injury sustained during an in-service motor-vehicle accident. See September 20, 1979 Report of Accidental Injury; April 4, 2003 Statement in Support of Claim. Service treatment records, however, do not document the claimed head injury. Moreover, while the Veteran’s service treatment records do show treatment for a number of medical complaints, there are no complaints, diagnosis, or treatment related to any acquired psychiatric disorder, to include schizophrenia. Had the Veteran been experiencing psychiatric symptoms during service, including hearing voices, the Board would expect that he would have reported these problems to medical professionals as he reported multiple other ailments during service. His service entrance examination and corresponding report of medical history are negative for any preexisting psychiatric problems. While his service personnel records note that the Veteran struck his superior officer within days of his official service discharge, a psychiatric evaluation was normal during his separation examination only two weeks prior. A disability is not shown by medical evidence until approximately the mid-to-late 1970s, many years after the Veteran’s separation from service. Of note, he was afforded a VA examination in September 1979 for complaints of nervousness. While he denied psychiatric problems upon examination, the examiner noted that the Veteran clearly described anxiety and depressive symptoms. The diagnosis was “psychoneurosis, anxiety with depression.” The Board notes that the Veteran did not attribute his symptoms to his military service; rather, he reported life stressors related to physical, employment, and family issues. Further, a VA staff psychiatrist noted in statements dated in December 1985 and February 1986 that the Veteran had been attending the Mental Hygiene Clinic for treatment since March 1975 because of chronic anxiety with depression. A November 1986 statement notes that the Veteran has had psychiatric treatment since as early as 1972, with no additional information. The Board notes that no psychiatric treatment dating back to 1972 or 1975 is of record, and there is no suggestion in the record that any additional medical treatment records may still be available. As a psychosis is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of his schizophrenia cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, including during his hearing before the undersigned when he reported that he began hearing voices in service, the Board finds these statements to lack credibility as they are in direct conflict with the medical record which is absent psychiatric treatment until years after service. The Board finds the Veteran’s documented medical history to be more reliable than more recent assertions. Turning to the remaining post-service evidence, a Social Security Administration determination in February 1981 denying disability benefits made no mention of the Veteran being vocationally impaired due to any psychological problems, only physical disabilities. At a Board hearing in July 1982 for a total disability rating for nonservice-connected pension purposes, while the Veteran reported a nervous condition and that he had been under stress since leaving the service due to “the government, government employees, the law enforcement, where I live and the court system,” he did not report that any nervous condition began during or was otherwise due to his military service. His pension claim was primarily for physical ailments, including multiple disabilities of the upper extremities. At a VA examination in October 1990, the Veteran complained of a nervous condition and described anxiety and depressive symptoms. The diagnoses were dysthymic reaction, chronic by history and “schizophrenia chronic undifferentiated type” based on direct mental status examination. At a VA examination again in September 1992, the Veteran complained of auditory hallucinations, feelings of unreality and panic episodes, and was diagnosed with schizophrenia. A VA medical center discharge summary reflected that the Veteran was hospitalized from July to August 1992 for complaints of sleep disturbances and hearing voices. The Veteran stated that heard voices in the past, specifically in 1964, and that he had some flashbacks and nightmares of experiences in Vietnam. The diagnosis was chronic schizophrenia with exacerbation. The Veteran was hospitalized again from October to December 1992 because of depression and hearing voices, and again reported that his psychiatric problems began in 1964 when he started hearing voices. In a May 1998 statement, the Veteran reported that his wife had a child by another individual while he was in Vietnam. In support of his claim, he submitted a letter from the Marine Corps sent to his wife in May 1965 notifying her of his allegations. The Veteran also maintained that while he was in Vietnam his sister was murdered, and submitted a copy of an undated newspaper article in regard to a murder which showed that the murder victim was survived by a brother with the same name as the Veteran. He stated that as a result of these experiences he suffered depression and anxiety that led to the incident where he struck his superior officer. During his initial Board hearing in July 2002, the Veteran testified that while in Vietnam he became depressed due to situations at home. The Board notes here that, despite his assertions in these earlier records, the record does not indicate that the Veteran had actual service in the Republic of Vietnam, including any combat service. While his military personnel records reflect service in Southeast Asia, the Veteran only appears to have set foot in the Philippines and on the island of Okinawa, and was awarded the Armed Forces Expeditionary Medal for service in support of military operations in the Republic of Vietnam. While the Veteran’s Military Occupational Specialty (MOS) was that of a Combat Engineer, the record does not reflect actual combat exposure. As noted, the Board previously denied the Veteran’s claim in November 2002, determining that, based on the medical evidence of record, there was no indication that a mental disorder existed during service or for many years thereafter. According to the Board at the time, his service medical records showed no treatment for or diagnosis of a psychiatric condition, and there was no probative medical opinion linking his diagnosis to service. The Veteran did not appeal the Board’s decision and it became final. The Veteran sought to reopen his claim in 2010, submitting a copy of a 2004 VA examination report that contains the examiner’s finding that, while the Veteran did not meet the criteria for a PTSD diagnosis, he did meet the criteria for a diagnosis of schizophrenia which appeared to have developed while he was serving in the Marines. The Board notes that there is no rationale for this opinion, as the examination was afforded simply to determine the Veteran’s competency to manage his financial affairs. Additionally, the examiner noted that most of the data in the examination report was obtained from interview with the Veteran, as the claims file was only partial and there were no records of his military service to verify his reports. Mental health records at the time of his claim to reopen continued to show the Veteran being treat for schizophrenia, including an August 2010 VA treatment record noting the Veteran reporting hearing voices and paranoia since 1964. Treatment records since also continue to note psychiatric treatment for schizophrenia. While an additional VA examination was afforded in December 2012 where his schizophrenia diagnosis was continued, no etiological opinion was provided as this examination was again for a competency determination. The Board reopened the Veteran’s claim in June 2019, and remanded it for additional development that included obtaining any missing treatment records and obtaining a new etiological opinion from a VA examiner. As noted, the Veteran did not respond to the RO’s request to identify any outstanding medical records. He did, however, report for a new VA telehealth examination in April 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that it was less likely than not that his disability was related to his military service, citing a lack of nexus evidence connecting his schizophrenia to his military service based on historical records and chart review, and clinical interview. The examiner also found that the Veteran did not have a diagnosis of PTSD according the Diagnostic and Statistical Manual of Mental Disorders that was at least as likely as not related to service, to include his remarks in the record that his condition began while in Vietnam. The examiner noted that the record instead reflects service only in Okinawa and the Philippines, and that the Veteran did not endorse any traumatic military related experiences. When the examiner inquired about traumatic and other qualifying events, the Veteran only discussed family-related problems at the time of his disability’s onset, and was relatively uncooperative during most of the examination. When asked specific questions about past events he often responded by stating “it’s in my records” or “I told it at the [Board] hearing.” The examiner did also note that the Veteran’s cognitive functioning and memory may be negatively impacted by an onset of dementia. The Board finds the above opinion that there is a lack of nexus to service to be highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. There is no other medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The opinion is also supported by other evidence of record, including the absence of any in-service medical evidence of an acquired psychiatric disorder, or any medical evidence of such in the immediate years following. While the record does document the Veteran striking his superior officer, as well as post-service legal troubles, there is no contemporaneous medical evidence that suggests that these incidents were related to a disability incurred in or otherwise related to his military service. Based on the foregoing, the Board finds the preponderance of the evidence remains against the claim and service connection for an acquired psychiatric disorder must once again be denied. The Board has considered the Veteran’s statements, to include his assertions that his schizophrenia was caused by, incurred in, or otherwise related to his military service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., paranoia and anxiety; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. The Veteran’s assertions concerning the presence of psychiatric symptoms in service, as well as the various other lay statements of record, including from his sister, are the only evidence that support his theory that his psychiatric conditions began in service. The Board respectfully notes that his statements, both since his initial service connection claim and more recently, concerning the presence of psychiatric symptoms in service are not only unsupported by his service treatment records, but are also in conflict with earlier applications for compensation benefits beginning in the 1970s which contain no allegation that he had a psychiatric disability related to service. The Veteran’s statements about in-service events conflicts with his documented service, such as his allegations related to Vietnam service, and he is found to not be a credible historian. While the Veteran’s sister indicates he changed after the military, this lay report does not substantiate the onset of schizophrenia during service or within a year after discharge. The Board ultimately assigns greater probative weight to the medical evidence of record, to include the findings and opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. (Continued on the next page.) In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.